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In the criminal justice system, definitions matter. When a jury convicts someone of an attempted crime, the law requires specific intent to bring about that exact outcome. You cannot intend to commit an accidental or reckless act—it is a legal impossibility. |
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Yet this exact legal contradiction sits at the heart of Mr. Otake’s two post-verdict motions in State v. Gerhardt Konig. |
The Konig Breakdown: A Compromise Verdict Gone Wrong |
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Dr. Gerhardt Konig was charged with Attempted Second-Degree Murder on the Pali Puka trail. The jury instead returned a verdict for Attempted EMED Manslaughter(Extreme Mental or Emotional Disturbance). Under Hawaiʻi law, EMED mitigates murder to manslaughter, but it still requires proof of specific intent to kill. |
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How The Integrity of the Verdict Unravelled |
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- Public Disavowal of Intent: Immediately post-trial, the foreperson stated on TV: "The intent to kill is improbable to us based on the evidence presented." Juror No. 3 echoed: "I don't know if he was trying to kill his wife."
- Convicting on "Recklessness": Jurors instead cited reckless behavior—actions that "could result" in serious injury or had the "capacity to kill."
- The Fatal Flaw: Under Hawaiʻi Supreme Court precedent (State v. Stanley and State v. Loa), Hawaiʻi does not recognize the crime of "attempted reckless manslaughter." Attempt requires intent.
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The Takeaway: Without proof of intent to kill beyond a reasonable doubt, the jury was legally required to acquit on attempted murder/manslaughter and consider lesser assault charges. Instead, they reached an improper compromise verdict on a nonexistent offense. |
How Can the Defense Present Post-Verdict Evidence? |
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Many assume HRE Rule 606(b) creates an impenetrable wall barring post-trial juror statements from being presented as evidence. Mr. Otake bypasses this hurdle by drawing a critical distinction: Rule 606(b) bars evidence of a juror’s subjective mental processes (private thoughts or regrets), but explicitly permits evidence of objective occurrences. |
The defense isn't asking the court to probe jury room deliberations. Instead, it offers the jurors' public statements to establish an objective, undisputed fact: the jury explicitly found no intent to kill. |
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"My HOT TAKE on What a New Trial Would Mean" |
Defendants often worry: "If I win a new trial, can the prosecutor retry me on the bigger charge?" |
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According to my feelings (and AI) not Mr. Otake’s motions, under federal and Hawaiʻi constitutional law, convicting on a lesser offense operates as an automatic, implied acquittal of the top count. Even if the lesser conviction is thrown out due to jury error, the acquittal on the top charge remains untouched. Again, this is a TEMU law office take; highly speculative and more feelings than facts. |
Legal prediction: if the court grants a new trial, then… |
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- Attempted Murder is Off the Table:Double jeopardy permanently bars the State from retrying Dr. Konig for Attempted Second-Degree Murder.
- Exposure is Capped: The prosecution loses its primary leverage. Any retrial is strictly limited to lesser offenses (such as assault charges).
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The Bottom Line |
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A jury cannot invent a middle ground when statutory elements aren't met. Sentencing for Dr. Konig is scheduled for Thursday, with a subsequent hearing on Mr. Otake’s motions Friday. My gut tells me this case won't be over by the end of the week. |
Stay tuned, folks! |
— Jail Mail Nick. |
